Week 42 (2017)

Week of October 16, 2017 through October 20, 2017

American Humanist Association v. Maryland-National Capital Park (Thacker 10/18/2017): The Fourth Circuit held a four-story-tall World War I memorial in the shape of a cross violates the Establishment Clause when it is owned and maintained by the State. The court applied the Lemon test, holding that the cross had the primary effect of endorsing Christianity and that it excessively entangled religion and government. The court reversed the district court’s grant of summary judgment in favor of the defendants, finding instead for the plaintiffs who opposed the state’s ownership of the cross, and remanded for further proceedings. Full Opinion

Keri Borzilleri v. Marilyn Mosby (Wilkinson 10/17/2017): The Fourth Circuit held the First Amendment does not protect an assistant state attorney from termination by the state attorney general for supporting an opposing political candidate for the state attorney general’s position. The court reasoned that since the assistant state attorney worked for a policymaker, she was exempt from protection. The court concluded that to hold otherwise would undermine the victor of public office’s right and prerogative to control the management of that office. The court affirmed the district court’s dismissal of the plaintiff’s claims. Full Opinion

Highlight Case

The Fourth Circuit held that a state violates the Establishment Clause of the First Amendment by owning and maintaining a large, four-story World War I memorial in the shape of a Latin cross. The court applied the First Amendment test from Lemon v. Kurtzman in its analysis and relegated the holdings from Van Orden v. Perry to considerations “where relevant.” Ultimately, the court held the Latin cross monument violated both the “effect” and the “excessive entanglement prongs” of the Lemon test and that each, independently, amounted to Establishment Clause violations.

In 1918, private residents of Prince George, Maryland began raising money to construct a giant cross to honor forty-nine World War I citizens from the county. The cross was to be installed on land owned by the city of Bladensburg, Maryland. The private residents, however, ran out of money prior to the completion of the cross. A local branch of the American Legion assumed responsibility for the cross, completing construction in 1925. In 1961, a Maryland state agency obtained title to the cross and the land beneath it. Since that time, the state spent $117,000 maintaining the monument and set aside another $100,000 for renovations. Since its installation, the cross has been the site of many memorial services and church services, but no religion other than Christianity has been represented. The cross itself does have secular features, including a plaque with the names of World War I soldiers and the star of the American Legion, but the court noted these features were particularly small given the size of the memorial and noted that the secular features had been obscured by time, weather, and vegetation.

The American Humanist Association (“Appellant”) brought suit against the Maryland-National Capital Park and Planning Commission and the American Legion (“Appellees”) in the United States District Court, and the court granted Appellees’s motion for summary judgment under the Lemon test. Thereafter, Appellant timely appealed to the Fourth Circuit.

To begin its analysis, the court addressed Appellees contention that Van Orden should control instead of Lemon. Lemon applies to claims of Establishment Clause violations broadly, while Van Orden is focused more narrowly on the Establishment Clause in the context of monuments. The Van Orden opinion, in essence, offers a different test than Lemon. However, Van Orden was a plurality opinion, and the court found itself bound only by Justice Breyer’s concurrence, for it was the narrowest. Since the court only followed Justice Breyer’s concurrence, it found Van Orden did not overrule Lemon, even in the context of monuments, and opted to follow Lemon and give consideration to the Van Orden factors when doing so.

Therefore, the court applied the Lemon test, which requires the government’s display to “(1) have a secular purpose; (2) not have a ‘principal or primary effect’ that advances, inhibits, or endorses religion; and (3) not foster ‘an excessive entanglement between government and religion’” in order to not violate the Establishment Clause. The first element is a very low hurdle, which the court found was satisfied by the state’s obtaining the cross for the maintenance of safety near a busy intersection.

The court, however, found the second prong was violated. The court reasoned the origins of the Latin cross generally supports Appellant’s position because it is clearly an unmistakable Christian symbol. The court found the history of the specific cross at issue favored neither party because, while it had primarily been used for Christian events, it was originally funded by private citizens, did not have a history of regular Christian use, and was used for veteran events. Furthermore, the court found the cross did not have significant secular elements. Lastly, the court found that the cross, to a reasonable observer, had the primary effect of endorsing religion. In addition to its analysis of the above factors, the court also distinguished the cross from monuments such as those found in Arlington National Cemetery, which contain many crosses but also represent a variety of other, non-Christian, religions. Therefore, the court held the state’s ownership and maintenance of the cross violated the second Lemon test prong.

While its holding regarding the second element rendered further analysis superfluous, the court also addressed the third Lemon element and found it was violated. In support of this holding, the court relied heavily on the significant use of state funds to support and maintain the cross. The court concluded the acts of the state evidenced that the state either placed Christianity over other religions or viewed being American and Christian as one in the same, or both.

Accordingly, the Fourth Circuit reversed the district court’s grant of summary judgment in favor of Appellees and found instead for Appellant.

Chief Judge Gregory dissented, arguing the majority misapplied Lemon and Van Orden to the extent that it subordinated the memorial’s secular history and instead focused on the obvious nature of Latin crosses. Chief Judge Gregory believed the memorial was obviously a World War I memorial and that reasonable observers were aware of that fact. Further, he argued that spending any funds on the promotion of a religious doctrine is not a per se violation of the Establishment Clause. Consequently, Chief Judge Gregory argued that the memorial did not violate the Establishment Clause and that he would affirm the district court’s judgment.